Wednesday, July 01, 2015

The celebration of the 800th anniversary of Magna
Carta, sealed in June 1215, is a fitting backdrop to thinking about Independence
Day 2015. While Magna Carta’s impact on Anglo-American jurisprudence is
sometimes exaggerated, there is no doubt that, in fact, the Great Charter has
played an influential role in the development of our nation’s understanding of rule
of law principles.

So, this Independence Day I propose to discuss the rule of
law – without which there would not exist the “unalienable Rights” of “Life,
Liberty, and the Pursuit of Happiness” proclaimed in the Declaration of
Independence and secured by the Revolution of 1776.

And while there is an embarrassment of riches from which to
choose, I propose to use the Federal Communications Commission’s recent
adoption of new Internet regulations – “net neutrality” mandates – to
illustrate how overly broad, vague government regulations serve to undermine
rule of law norms.

First, back to Magna Carta and its most frequently cited
provision, Chapter 39, which provides: “No free man is to be arrested, or
imprisoned, or disseised [i.e., dispossessed]…or in any other way ruined…except
by the lawful judgments of his peers or by the law of the land.” It is from
this “law of the land” guarantee that the concept of “due process of law” largely
developed. This owes much to Sir Edward Coke, who in his famous Institutes, equated the phrase “due
process of law,” first found in an English statute of 1354, with Magna Carta’s
“law of the land.”

The American Constitution’s framers, intimately familiar
with both Magna Carta and Coke’s Institutes,
incorporated the “due process of law” guarantee into the United States
Constitution through the Bill of Rights. The Fifth Amendment provides: “No
person shall…be deprived of life, liberty, or property, without due process of
law.”

A rule of law regime that conforms to our jurisprudential
understanding of “due process of law” generally must include the following
elements: (1) fidelity to rules; (2) of principled predictability; and (3)
embodied in valid authority external to individual government decision-makers.
As Ronald Cass puts it in his book, The
Rule of Law in America, the rule of law “pulls society in the direction of
knowable, predictable, rule-based decision-making, toward limitations on the
alignment of power with legitimacy.”

Now to the FCC’s new Internet regulations – found in its
artfully styled Open Internet order –
as an example of government action substantially at odds with traditional rule
of law norms. FCC Chairman Tom Wheeler has made somewhat of a fetish of declaring
that the Commission’s role is to act as a “referee on the field who can throw
the flag” or a “referee with a yardstick” to enforce the “basic ground rules” –
or some variation thereof. Perhaps in a sports-crazed nation the invocation of
a flag-throwing referee is seductive. The fundamental problem, of course, is
that unlike football, or any other sport, the Open Internet order does not contain, in significant part, rules of
“principled predictability” against which flags can be thrown.

Without belaboring here other aspects of the rules’ built-in
vagueness, I will simply point to one key part of the agency’s Internet
regulation order that, prima facie, shows
that the legal requirements are not knowable in advance. In what the FCC itself
calls a “general conduct standard,” the regulations provide that Internet
providers “shall not unreasonably interfere with or unreasonably disadvantage”
users’ Internet services or competitors. In the technologically dynamic,
rapidly evolving Internet environment, where new business models emerge and are
modified in response to changing consumer demands, this “no unreasonable
interference/disadvantage” standard leaves too much unbridled discretion in the
hands of the government enforcers. In other words, the referee can throw the
flag – and levy huge multi-million dollar fines – without reference to any “basic
ground rules” of “principled predictability” knowable in advance.

Contrary to rule of law norms that align power with
legitimacy, regulations such as the FCC’s open-ended general conduct
proscription serve to undermine the legitimacy of government action.

Federalist No. 62
(probably authored by James Madison) addresses the “calamitous” effects of
mutable policy resulting from laws “so incoherent that they cannot be
understood.” The author declares: “Law is defined to be a rule of action; but
how can that be a rule, which is little known and less fixed?” According to the
Federalist, this little known/less
fixed conception of law “poisons the blessings of liberty itself.”

As I said, the FCC’s action in the Open Internet proceeding is just one example of a government action
in tension with rule of law norms, albeit an important one. Many others could
be cited.

As we celebrate this Independence Day – and the 800th
anniversary of Magna Carta too – we should be cognizant of protecting the
freedom we enjoy. And we should expect our government officials to uphold the
rule of law, so as not to “poison the blessings of liberty itself.”